The case is Davis v. Cintas, decided by the 6th Circuit on 5/30/13 [2013 U.S. App. LEXIS 10856]. This case is very much like Dukes v. Wal-Mart [131 S. Ct. 2541, 112 FEP Cases 769 (2011)], but on a smaller scale. Aside from scale, the claims are virtually the same as in Dukes, and so is the outcome.

Tanisha Davis sued Cintas for sex discrimination in the hiring of entry-level sales positions. She made individual claims of adverse impact and disparate treatment, and a separate claim of disparate treatment on behalf of a class of female applicants for the position in question. The District Court for the Eastern District of Michigan entered a summary judgment for Cintas on all three claims and the 6th Circuit upheld the adverse impact and class certification rulings, but overturned on the individual claim of disparate treatment. For present purposes, the focus is on the denial of class certification, which, as in Dukes v. Wal-Mart, was based on failure to establish commonality (Rule 23(2)(2)).

Davis presented statistical evidence of “underhiring” of women across all Cintas locations nationally, sociological analysis supporting discriminatory subjective decision making, and anecdotal accounts of discrimination. The district court gave several reasons for lack of commonality, including: (1) the hiring process was entirely subjective; (2) the process was conducted by thousands of managers at hundreds of facilities; (3) the hiring decisions were made for a “diverse range of reasons”; and (4) the hiring process had multiple steps that at some points, involved women managers. Thus, the court concluded that “"Putative class members would have suffered the alleged discrimination in different ways at different stages of the hiring process, and depending on the different employees involved at each hiring stage.” Additionally, the company poked holes in the statistical analyses, the court rejected the expert’s claim that discrimination was based on a “male-dominated business culture,” which replicated itself in hiring decisions, and that the anecdotal evidence of discrimination was not compelling.

In affirming the lower court judgment, the 6th Circuit relied on Justice Scalia’s opinion in Dukes that “the party seeking class certification must show that the defendant used a biased testing procedure," ….. or she must produce significant proof that an employer operated under a general policy of discrimination . . . if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes." Obviously, Betty Dukes failed to meet any of these criteria, and so did Tanisha Davis.

by Art Gutman, Ph.D., Professor, Florida Institute of Technology

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